Iqbal Ahmad, J.
1. This is a plaintiffs' appeal and arises out of a suit for recovery of possession of a one anna 15-gandas and odd zemindari share by cancellation of a sale-deed dated the 18th May 1908, executed by Deoki Nandan, grandfather, Chandrika, father, and Ram Behari uncle of the plaintiffs along with one Parshotam who was a nephew of Deoki Nandan, the grandfather of the plaintiffs. The property sold by the said sale-deed was a two-annas 13-gandas and odd share out of which 17-gandas and odd belonged to Parshotam and I am not concerned with that share in the present appeal. The remaining share, viz., the share in dispute was sold by the remaining vendors for a sum of Rs. 1,000.
2. The plaintiffs' allegations were in the common form jointness of the family, the property in dispute being joint ancestral property of the family, and an assertion of the absence of any legal necessity for the sale.
3. The suit was resisted by the defendants substantially on three grounds. Firstly, that the plaintiffs were not born on the date of the execution of the sale-deed and as such had no right to maintain the suit. Secondly, that the property in dispute was not ancestral property and as such the plaintiffs had no right or interest in the same, and thirdly, that the entire sale consideration was for legal necessity. The first Court overruled the first plea taken in defence noted above, but held that the plaintiffs had failed to prove that the property in dispute was the joint ancestral property and further held that the entire sale consideration of Rs. 1,000 was for legal necessity. On these findings the trial Court dismissed the suit of the plaintiffs.
4. On appeal by the plaintiffs the decree of the trial Court has been upheld by the lower appellate Court. That Court has held that out of the sale consideration of Rs. 1,000 a sum of Rs. 626-10-0 was proved to have been for legal necessity, but the remaining portion of the sale consideration, viz., Rs. 373-6-0, which was advanced in cash, was not proved to have been taken for legal necessity. But it held that the major portion of the property in dispute was self-acquired property of Deoki Nandan, and the portion of the disputed property that could be assumed to be ancestral property of the plaintiffs was far below the proportionate amount of the sale consideration that was found to be for legal necessity. It proceeded to observe that Deoki Nandan had a full disposing power with respect to his self-acquired property, and as the portion of the sale consideration held to have been advanced for legal necessity was much in excess of the proportion of the ancestral property of the plaintiffs, the plaintiffs were not entitled to avoid the sale.
5. I am not prepared to say that the judgment of the lower appellate Court is satisfactory in every respect, and, as a matter of fact, at the inception of the argument of the learned Counsel for the appellants, it seemed to me, that it would be impossible for me to dispose of the appeal satisfactorily, without having clear findings on certain issues from the lower appellate Court; but after going through the pleadings of the parties and after making certain calculations with respect to the shares that belonged to two persons named Ram Sahai and Gulab, whose relationship with the plaintiffs will presently appear, I came to the conclusion that the judgment of the lower appellate Court though sketchy and unsatisfactory, is right.
6. The main grievance of the appellants before me is that the lower Appellate Court has misdirected itself, in proceeding on the assumption, that inasmuch as the plaintiffs had failed to prove what portion of the property was the self-acquired property of Deoki Nandan, the whole property in dispute must be presumed to be non-ancestral, and further that Ram Sahai, the great grandfather and Gulab the brother of Ram Sahai, having once admittedly been the owners of the property in dispute along with other properties, the lower appellate Court ought to have considered the case on the assumption that those two brothers were members of a joint Hindu family unless the contrary was proved.
7. It is true that ordinarily as between two Hindu brothers there is a presumption of jointness; but once a suit is brought for the recovery of possession of a certain property that has passed out of the hands of the family of which the plaintiffs are members, and when in that suit it is contended by the defendants, that the property sought to be recovered by the plaintiffs was not the ancestral property of the plaintiffs the burden of proving that the property was ancestral lies on the plaintiffs. This was the view taken by their Lordships of the Privy Council in the case of Atar Singh v. Thakur Singh  35 Cal. 1039. In the present case it was definitely asserted in the written statement that the property in dispute was not ancestral property, and as such, before the plaintiffs could be held entitled to a decree, it lay on them to prove that the entire property or a portion of the same was ancestral property. In face of the pleadings and in face of Issue No. 3 framed by the trial Court no assumption in the absence of direct evidence, could be made in favour of the plaintiffs. As observed by their Lordships in the case noted above:
when the onus lies as it does in this case on the plaintiffs in seeking to set aside on such grounds a solemn deed executed by their father, conjectures cannot be accepted as a substitute for proof.
8. On the finding of the lower appellate Court the plaintiffs failed to prove what portion, if any, of the property in dispute was ancestral and as such that Court was right in affirming the decree of the trial Court and dismissing the plaintiffs' suit.
9. But because of the unsatisfactory nature of the judgment of the lower Appellate Court, I, before disposing of the appeal thought it proper to arrive at a finding myself, after going through the evidence on the record, in pursuance of the power vested in an Appellate Court by the provisions of Section 103, Civil P.C. I have read the evidence in the case. It appears that a two-annas 14-gandas share belonged to two brothers Ram Sahai and Gulab in equal shares. Out of the same a one-anna 7-gandas share belonged to Gulab. On Gulab's death the same passed in equal shares to the three sons of Ram Sahai named Harbandhan, Deoki Nandan named above and Hardin. Thus 9-gandaa out of Gulab's share inherited by Deoki Nandan was obviously his self acquired property provided Ram Sahai and Gulab were separate. On the question of the jointness or otherwise of Ram Sahai and Gulab the evidence is entirely one-sided. Notwithstanding the clear form of Issue No. 3 the plaintiffs adduced no evidence to show that Ram Sahai and Gulab were ever joint. On the contrary the defendants did produce evidence to prove that Ram Sahai and Gulab were separate.
10. Out of the one-anna 7-gandas share of Ram Sahai each of the three sons also inherited 9-gandas share. One of these brothers Harbandhan died issueless and out of his 9-gandas, 4-gandas passed to Deoki Nandan. This 4-gandas share also became the self-acquired property of Deoki Nandan, inasmuch as here again there is positive evidence on behalf of the defendants that Harbandhan and Deoki Nandan were separate, and there is no evidence led by the plaintiffs to contradict the statements of the defendants' witnesses on the point. Undoubtedly the 9-gandas share that Ram Sahai inherited from Deoki Nandan would be ancestral property. Thus out of the entire 22-gandas share that came to Daoki Nandan 13 gandas share was undoubtedly self-acquired property and he had a complete disposing power for the same. In consequence of a partition effected by the Revenue Court the original share of two-annas 14 gandas became 4-annas share, and this accounts for the fact that the share transferred by Deoki Nandan and now claimed by the plaintiffs, is represented by a one-anna 15-gandas share. The proportionate amount of the sale consideration found to be for legal necessity is far in excess of the proportion that 9-gandas share (the ancestral property of the plaintiffs) bears to 13 gandas share (the self-acquired property of Daoki Nandan) and as such the plaintiffs were not entitled to a decree for any portion of the ancestral property. In my judgment the decisions of the Courts below are perfectly correct and I dismiss the appeal with costs including in this Court fees on the higher scale.